Lazarus & Anor v Commonwealth of Australia & Ors

In the High Court of Australia, the plaintiffs, Lazarus and another, commenced proceedings against the Commonwealth of Australia, the Governor-General of the Commonwealth of Australia, the Prime Minister of Australia, the Commonwealth Attorney-General, the State of New South Wales, and the Attorney-General for the State of New South Wales. The dispute concerned the plaintiffs' claim, which was initiated by a writ of summons filed on 16 November 2018. The last action taken by the plaintiffs in the proceeding was the filing of a summons for directions on 24 December 2018.

The legal issues before the Court were whether the proceeding should be dismissed for want of prosecution and whether the plaintiffs had prosecuted the proceeding with due diligence. This arose after the defendants filed a summons seeking a stay of proceedings on the grounds that the claim disclosed no cause of action or was frivolous or vexatious, and following a Deputy Registrar's email noting the lack of progress and the passage of over three years since the last step was taken. The Court was required to consider the application of Rule 28.01.1(a) of the High Court Rules, which allows for dismissal for want of prosecution, and Rule 4.03.2, which requires leave of the Court to take a step in a proceeding after such a period of inactivity.

His Honour determined that the discretion to dismiss the proceeding for want of prosecution under Rule 28.01.1(a) had been enlivened due to the plaintiffs' failure to take any steps to advance the proceeding for over three years, with no explanation provided for this inaction. The Court found that this gross inaction was inconsistent with the concept of "due diligence." Furthermore, notice had been given to the plaintiffs as required by Rule 28.01.3(b). His Honour was satisfied that the discretion was appropriately exercised, noting the absence of any indication that the plaintiffs were ready to proceed or that they would suffer substantial prejudice from the termination of the proceeding.

Accordingly, His Honour ordered that the proceeding be dismissed for want of prosecution pursuant to Rule 28.01.1(a) of the High Court Rules.